The report of Parliament’s Transgender Equality Inquiry was published overnight. As is inevitable with such things, it is a mixed bag. Some of its findings are very welcome; others could do with improvement. However, this is still a momentous occasion. To see an official government report open up like this brings tears to my eyes:
Fairness and equality are basic British values. A litmus test for any society that upholds those values is how far it protects even the most marginalised groups. Britain has been among the countries going furthest in recognising lesbian, gay and bisexual rights, but we are still failing this test in respect of trans people, despite welcome progress.
One of the things that quickly becomes obvious reading the report is that the committee found they had opened a can of worms. They realized that they knew very little about non-binary identities, and even less about intersex people. Much of what they say in the report is a call for more investigation and fact finding. This will obviously be disappointing to many people, but at least it is a start.
When reading through such documents it is always wise to take account of the language that is used. When a government report says that someone “must” do something that has a very different weight to saying that they “should” do something, or that it is “recommended” that they do something. Of course the Inquiry doesn’t have the power to compel anyone to do anything, but what it says has weight and will be difficult for people to ignore.
Amongst the things the report says must happen are the following.
With regard to the government it says that it:
Must advance the Transgender Equality Action Plan, and conduct a wholesale review of issues facing non-binary people.
This is basically Maria Miller (chair of the Inquiry) asking Nicky Morgan (Minister for Women & Equalities) for permission to carry on working on trans issues. The report adds that the government:
Must make a clear commitment to abide by the Yogyakarta Principles and Resolution 2048 of the Parliamentary Assembly of the Council of Europe.
This doesn’t actually do anything, but signing up to these two declarations of principle will make it harder for the government to backtrack on or ignore trans issues in future. Significantly the report also says that the government:
Must look into the need to create a legal category for those people with a gender identity outside that which is binary and the full implications of this.
Given the way British law has been written over the centuries, this is actually a major undertaking, but one that has to be done if proper gender equality is ever to be implemented. There are far too any places in law where gender is used to differentiate between classes of people.
Moving on to the trans-specific legislation, the report says that the government:
Must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.
This is extremely welcome. Sadly they are not prepared to extend the same consideration to young trans people, of which more later. They cling to an idea known as “Gillick Competence” which basically says that parents have the right to make decisions on behalf of their children. The only exception presented to this is the following:
The Equality and Human Rights Commission must be able to investigate complaints of discrimination raised by children and adolescents without the requirement to have their parents’ consent.
Which I guess is better than nothing.
The report thoroughly rubbishes the NHS. As various people have pointed out, this probably has as much to do with the desire of the government to sell off health services as it does with sympathy for trans people. However, this is useful:
The General Medical Council must provide clear reassurance that it takes allegations of transphobia every bit as seriously as those concerning other forms of professional misconduct.
That’s Parliamentary code for, “Oy, GMC, stop whitewashing transphobic behaviour by doctors!”
There is lots of additional comment about capacity in gender clinics, but no real idea how improvements will be achieved.
Turning its attention to the Ministry of Justice, the report says:
The Ministry of Justice must ensure that it consults fully with the trans community in developing the Government’s new hate-crime action plan, so that the proposals are well-targeted and likely to be effective in increasing levels of reporting. This plan must include mandatory national transphobic hate-crime training for police officers and the promotion of third-party reporting.
Whether they do or not is another matter, given the long-standing antipathy that the Minister for Justice, Andrew Selous, has for trans people. I’ll have more to say on hate crime later. Meanwhile, here’s a big one:
The UK must follow Australia’s lead in introducing an option to record gender as “X” on a passport. If Australia is able to implement such a policy there is no reason why the UK cannot do the same. In the longer term, consideration should be given to the removal of gender from passports.
This is very welcome. It is also evidence that the Inquiry Committee is listening. Some news reports suggested last week that Maria Miller wanted to call for removal of gender form passports immediately. A lot of trans folk were quite concerned about this. Long term I do think it is a good idea, but in the short term while proof of one’s gender is a social necessity having gender markers on passports is a good thing, provided that the X option exists.
By the way, Australians, please don’t take this as a slight. That comment about you guys being able to do it is an attack on the people in the Civil Service who have said that we can’t have X passports because the Americans would be upset with us. The Report is pointing out that you have done this without any adverse effects.
On education the report says:
Schools must understand their responsibilities under the Equality Act. They must abide by their legal responsibility to ensure that all staff receive sufficient training to ensure they are compliant across all protected characteristics, including that which relates to trans people, especially gender-variant young people.
Again there’s no ability to force them to comply, but that paragraph will be of enormous use to Mermaids when they find schools unwilling to accommodate trans kids.
We now come on to the things that people merely “should” do, or which are “recommended”. We start with the Equality Act.
The protected characteristic in respect of trans people under the Equality Act should be amended to that of “gender identity”.
This is very important. Previously the Act only protected people who were either proposing to undergo, were undergoing or had undergone medical treatment for gender issues. This change will extend protection to all trans people. The report also says:
We recommend that the Equality Act be amended so that the occupational requirements provision and / or the single-sex / separate services provision shall not apply in relation to discrimination against a person whose acquired gender has been recognised under the Gender Recognition Act 2004.
Again this is very important. The Equality Act tried to push back against the Gender Recognition Act by separating out trans women from the general group of women and stating that we could be legally discriminated against on that basis. As of now, the change above only affects those of us who have Gender Recognition Certificates. However, if the other recommendations of the panel to make GRCs easier to get are put in place then more people will be protected by this.
On sport the report says:
We recommend that the Government work with Sport England to produce guidance which help sporting groups realise that there are likely to be few occasions where exclusions are justified to ensure fair competition or the safety of competitors.
This is basically a warning shot across the bows of sporting bodies, and a useful weapon for trans activists.
I found the section on hate crime particularly interesting. Right up front the report states:
Legal changes are critical, but they will only bite if there is cultural change too—by society but also by those who enforce the law.
This is absolutely true. No amount of hate crime legislation will help if society, and the police, have no respect for those laws. The report recommends that:
The Government should introduce new hatecrime legislation which extends the existing provisions on aggravated offences and stirring up hatred so that they apply to all protected characteristics, as defined for the
purposes of the Equality Act 2010.
This is a direct criticism of the Law Commission which, a while back, said that specific protection for trans and disabled people was not necessary. This piece of evidence quoted by the report stands out:
Chief Constable Sawyers told us: if you are either transgender or disabled, how on earth can you ever believe that the law is fair in relation to you?
Think about that. A police Chief Constable told the report that trans and disabled people can’t possibly have any confidence that the law is fair in relation to them, as things currently stand.
Finally I want to look some of the ways in which the report fell short, starting with the infamous Spousal Veto, which is fast becoming a line in the sand that transphobes in government will defend with their lives if need be. There is all sorts of nonsense about marriage being a legal contract that can’t be changed. All this does is show that the government thinks that there are straight marriages and gay marriages, which are two very different things, and that the idea of turning one into the other is horrifying to them. We need proper marriage equality.
The report says:
We do take very seriously the evidence that we have heard regarding the scope that the spousal-consent provision gives for married trans people to be victimised by spouses with malicious intent. Where this occurs, it is, of course, deplorable and inexcusable. The Government must ensure that it is informed about the extent of this and ways of addressing the problem.
I interpret this as meaning that they want evidence of how the Veto is being used. If evidence shows that it is only used for abuse, or not used at all, then presumably it can go. Given the way the timing works, in that the Veto can only be applied after the trans person has undergone full transition, the Veto can only be possibly be used maliciously, so I am confident of the outcome here.
As far as young people go, the report asks for improvements in treatment, but only recommends legal recognition at 16 (as opposed to 18 as it is now). It says:
It is important that clear safeguards are in place to ensure that long term decisions about gender recognition are made at an appropriate time.
The trouble is that long term decisions are being made about people’s gender. They are made by doctors and midwives, and if mistakes are made they can’t be fixed for years. There is nothing magical or sacred about the gender people are assigned at birth, and we should not be afraid of correcting mistakes. Also, if Germany can allow an X gender to be assigned at birth, why can’t we?
The report spends quite a bit of space on the provision in the Gender Recognition Act that criminalizes the outing of trans people without their permission. It says:
we note that not a single prosecution has yet been brought under this Section. There is a grave danger that this provision will become (if it has not already become) a “dead letter”.
Sorry folks, but it is already a dead letter. Anyone who does get outed will probably be far too traumatized to go through the process of prosecution. Plus it will be very hard to prove, and will it cost a fortune to bring a case.
Another disappointing area is the reluctance of the report to embrace an informed consent model for treatment of trans people. It says:
However, we are unconvinced of the merits of the proposed informed consent only model. While there is a clear case for the granting of legal gender recognition on request, with the minimum of formalities, this approach is less appropriate for a medical intervention as profound and permanent as genital (reassignment / reconstructive) surgery.
I don’t think the Committee quite understands what it is saying here. Basically they are creating a situation where lots of people will be able to self-identify in a gender other than that which matches their body, but they won’t be able to get surgery because they can’t get medical approval. The idea of men with vaginas and women with penises horrifies most conservatives, yet here is a Conservative-run Committee saying that it wants lots more of them. I mean, good for them, but did they really mean to say that?
There are also a few places where the Committee seems to have failed to understand the issues. On the “real life test” they say:
The requirement to undergo “Real-Life Experience” prior to genital (reassignment / reconstructive) surgery must not entail conforming to externally imposed and arbitrary (binary) preconceptions about gender identity and presentation. It must be clear that this requirement is not about qualifying for surgery, but rather preparing the patient to cope with the profound consequences of surgery.
First of all they have completely missed the fact that some gender clinics were demanding that patients complete the “real life test” before they were even allowed hormones. That’s exceptionally cruel, and the fact that it was done should be recognized so as to prevent any of them backsliding.
In addition people wanting surgery are generally totally OK with the profound consequences, and can’t wait to get rid of the body parts they hate. The above statement is another example of cis people being terrified by the idea of losing beloved body parts and not being able to understand why trans people don’t suffer from the same existential horror.
The one area where I expected total failure is when dealing with the media. The report says:
Both the Independent Press Standards Organisation and Ofcom should consider what steps they might take to encourage more trans people to come forward with complaints.
I’m sure that they will consider this. For all of about half a second. They will then decide to do nothing. Because everyone knows that complaining is pointless. Also see Helen Belcher on how the IPSO responses to her complaints were deeply disingenuous.
That’s it for now. Sorry it is so long. But hey, this is an historic day. I’m glad I lived to see it.
Update: I knew I’d forget something.
There are (at least) two important areas that the report says nothing about. Firstly it says nothing about the plight of trans asylum seekers, who are treated appallingly by the UK border services. Secondly it says nothing about the increasing tendency to prosecute trans people for fraud if they have sex without revealing to their partner that they are trans. The latter was actually in my submission to the inquiry, and they have ignored it completely.
Also I have seen a lot of talk today about groups within the trans community not being left behind. We definitely do not want this to happen. As of now mostly what the Committee has said is that it doesn’t know enough to include everyone. When actual legislative proposals are put forward, that is the time to see if anyone is being left behind, and to make sure it doesn’t happen. The people are are specifically being left behind by the report are young trans people, and that’s something we can complain about.
Update 2: If anyone wants a good, 12-page summary of the 98-page document try here.